Rank v. United States

OPINION AND ORDER REGARDING PETITIONER'S MOTION
PURSUANT TO RULE OF CIVIL PROCEDURE 60(b)(6)

MARK
W. BENNETT U.S. DISTRICT COURT JUDGE

This
case is before me on petitioner Randall Rank's July 27,
2017, Motion Under Federal Rules Of Civil Procedure Rule
60(b)(6) And (d)(1) (Rule 60(b) Motion). I find it helpful to
provide some background to that motion.

On July
17, 2006, Rank pleaded guilty in this court, pursuant to a
plea agreement, to three counts of a five-count indictment.
Somewhat more specifically, he pleaded guilty to conspiracy
to manufacture and distribute 50 grams or more of actual
methamphetamine and to distribute and possess with intent to
distribute 500 grams or more of a mixture or a substance
containing a detectable amount of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(A),
841(a)(1), 841(b)(1)(A) and 846, from about 2002 through
September of 2004 (Count 1); manufacturing and attempting to
manufacture 5 grams or more of pure methamphetamine during
July of 2004 in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B) and 846 (Count 2); and manufacturing
and attempting to manufacture 5 grams or more of pure
methamphetamine during September of 2004 in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846 (Count
3). Prior to Rank's guilty plea, the prosecution filed a
Notice Of Intent To Seek Enhanced Penalties Pursuant To 21
U.S.C. § 851 (§ 851 Information), seeking
enhancement of Rank's mandatory minimum sentence, listing
two prior felony drug offenses, one in Minnesota and one in
Iowa, but seeking mandatory minimum sentences on the charged
offenses based on only one prior conviction. On October 25,
2006, I sentenced Rank to the enhanced statutory mandatory
minimum sentence of 20 years (240 months) of imprisonment,
based on one prior felony drug conviction, [1] and judgment
entered accordingly on October 30, 2006.

Rank
filed a Pro Se Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aide, Or Correct Sentence By A Person In Federal
Custody (§ 2255 Motion) on October 29, 2007, but never
filed a supporting brief. In a Memorandum Opinion And Order
Regarding Petitioner's § 2255 Motion (§ 2255
Ruling), filed October 14, 2009, I denied Rank's §
2255 Motion in its entirety and concluded that no certificate
of appealability would issue for any claim or contention in
this case. Judgment entered accordingly on October 14, 2009.
Notwithstanding my denial of a certificate of appealability
in both my § 2255 Ruling and in response to a subsequent
Motion For Certificate Of Appealability, Rank filed a Notice
Of Appeal on December 11, 2009. The Eighth Circuit Court of
Appeals also denied a certificate of appealability and
dismissed Rank's appeal on January 21, 2010, and its
mandate issued on March 12, 2010.

More
than seven years after dismissal of the appeal of the denial
of his § 2255 Motion, Rank filed his Rule 60(b) Motion.
I conclude that Rank's Rule 60(b) Motion is a second or
successive petition for habeas relief filed without
permission of the Eighth Circuit Court of Appeals.

As the
Eighth Circuit Court of Appeals has explained,

[B]efore filing a second or successive petition in district
court, a habeas applicant must receive an order authorizing
it from the court of appeals. [28 U.S.C.] § 2244(b)(3).
Under the statutory scheme, a second or successive habeas
motion filed by someone in federal custody must also
“be certified as provided in section 2244 by a panel of
the appropriate court of appeals.” 28 U.S.C. §
2255(h).

United States v. Lee, 792 F.3d 1021, 1023 (8th Cir.
2015). Furthermore, “[i]t is well-established that
inmates may not bypass the authorization requirement of 28
U.S.C. § 2244(b)(3) for filing a second or successive
§ 2254 or § 2255 action by purporting to invoke
some other procedure.” United States v.
Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005).

Specifically,
as to Rule 60(b) motions, the Eighth Circuit Court of Appeals
has explained,

The Supreme Court has decided that AEDPA's procedural
requirements for second or successive habeas petitions apply
to motions for relief from a judgment filed under Federal
Rule of Civil Procedure 60(b). Gonzalez [v. Crosby],
545 U.S. [524, ] 531, 125 S.Ct. 2641');">125 S.Ct. 2641 [(2005)]. The
Gonzalez Court explained that Rule 60(b) motions
often contain claims which are “in substance a
successive habeas petition and should be treated
accordingly.” 545 U.S. at 530- 31, 125 S.Ct. 2641');">125 S.Ct. 2641. The
Court gave examples of such motions, one being an assertion
that owing to excusable neglect “the movant's
habeas petition had omitted a claim of constitutional
error” and an accompanying request to present the
claim. Id., citing Harris v. United States,
367 F.3d 74, 80-81 (2d Cir.2004). Another example is a motion
attacking a “previous resolution of a claim on the
merits.” 545 U.S. at 532, 125 S.Ct. 2641');">125 S.Ct. 2641 (emphasis in
original).

A Rule 60(b) motion is not treated as second or successive
under AEDPA, however, if it does not raise a merits challenge
to the resolution of a claim in a prior habeas proceeding,
but instead attacks “some defect in the integrity of
the federal habeas proceedings.” Gonzalez, 545
U.S. at 532-33, 125 S.Ct. 2641');">125 S.Ct. 2641. Thus, the Rule 60(b) motion
in Gonzalez which sought to challenge a statute of
limitations ruling which had prevented review of an initial
habeas petition, did not require precertification under
§ 2244(b)(3). Id. at 533, 538, 125 S.Ct. 2641');">125 S.Ct. 2641.

Lee, 792 F.3d at 1023.

Here,
Rank's Rule 60(b) Motion does not merely attack some
defect in the integrity of the federal habeas proceedings,
which would be an argument that could be properly asserted in
a Rule 60(b) motion. Id. Rather, his Rule 60(b)
Motion asserts claims of constitutional error in his
underlying conviction that he never raised in his § 2255
Motion, but now wishes to present to the court, on the ground
that his original pro se motion ineffectively
presented the issues. I conclude that his Rule 60(b) Motion
presents entirely new claims, so that his purported
Rule 60(b) Motion is a second or successive habeas
petition subject to the requirements of 28 U.S.C. §
2244(b)(3). Id.

Specifically,
in his original § 2255 Motion, Rank asserted three
grounds for relief: (1) ineffective assistance of his trial
counsel in failing to object to criminal history points,
because “some of my convictions were related”;
(2) ineffective assistance of his trial counsel in failing to
object to mandatory application of the Sentencing Guidelines;
and (3) ineffective assistance of his trial counsel in
failing to object to his sentence on the basis that some of
the drugs at issue were “impure.” § 2255
Ruling, 10-12. In his Rule 60(b) Motion, however, Rank now
“tries to clarify th[e] point [that some of his
convictions were related], and the basis for his 60(b)
motion, [to be that] he alleged then and now, that his
counsel failed to research one very important issue, that
being whether his prior conviction used as the basis for a 21
U.S.C. § 851 enhancement did in fact qualify, thus
allowing the Court to base its sentence on an unqualifying
prior [conviction] that raised his mandatory sentence to 20
years.” Rule 60(b) Motion, 2. Somewhat more
specifically, he argues that his prior Iowa conviction, used
to enhance his mandatory minimum, was not a final ...

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